State Consumer Disputes Redressal Commission
India Times Shopping vs Shivanand Narain on 25 May, 2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal case No.219/2009 Date of institution: 23.4.2009 Date of decision :25.5.2010 1. India Times Shopping c/o Times of India TOI Office, Sector 8, Madhya Marg, Chandigarh. 2. Times Internet Ltd. (India Times) TOI Building, Top Floor, 10 Darya Ganj, New Delhi ---Appellants Versus 1. Shivanand Narain, House No.427, Sector-2, Panchkula. 2. The In-Charge, O2 Care Centre, A-16, B-1 Extension, Mohan Co- operative Industrial Estate, Mathura Road, New Delhi-110044. 3. First Wholesalers, 203, Mansarsovar Building, 90, Nehru Place, New Delhi-110019. ...Respondents Appeal U/s 15 of Consumer Protection Act,1986 against order dated 18.3.2009 passed by Consumer Disputes Redressal Forum- II, U.T.Chandigarh.. Argued by: Sh.Vishal Gupta, advocate for the appellants Sh.Ashim Aggarwal , Advocate for the respondent No.1. Respondents No.2 & 3 ex parte BEFORE : Honble Mr.Justice Pritam Pal, President Maj.Gen.S.P.Kapoor (Retd.),Member Mrs. Neena Sandhu, Member JUDGMENT
25.5.2010 Justice Pritam Pal, President
1. This appeal by opposite parties No.1 & 3 is directed against the order dated 18.3.2009 passed by District Consumer Forum-II, U.T. Chandigarh whereby complaint bearing No.101 of 2008 filed by Mr.Shivanand Narain- respondent No.1/complainant was allowed with costs of Rs.5000/- and OPs were directed to refund the amount of Rs.20,390/- being the price of the mobile set and to pay a sum of Rs.15000/- as compensation for mental tension and harassment. The OPs were directed to make payment of the above amounts to the complainant within one month from the date of receipt of certified copy of the order, failing which they were made liable to pay penal interest @ 12% p.a. from the date of order till its realization.
2. The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.
3. The brief facts culminating to the commencement of this appeal may be recapitulated thus ;
The complainant after seeing an advertisement published by IndiaTimes- Opposite party No.1 in the Times of India bought an O2 XDA Stealth Mobile Phone (IMEI # 356557002726734)on 15.6.2007. The said mobile was sold through M/s First wholesalers (OP NO.4) -agents of OP NO.1 vide invoice No.00579 dated 15.06.07 for Rs.20390/-. On receiving the mobile through courier, complainant noticed that on inserting the SIM card it stopped functioning and the software hanged and did not display anything except the welcome screen and it became absolutely unusable. The complainant contacted OP-3 who advised him to return the phone for replacement. He then sent the mobile phone to OP-3 through TNT Courier for replacement. However, the said mobile phone was returned to the complainant by OP-4 along with a letter copy of which is annexure C-4 written by one Sh.Kapil Aggarwal asking the complainant to lodge the claim with O2 Service Centre as the product carried manufacturer warranty. The complainant promptly spoke to O2 Customer Care on 06.08.07 and his complaint was registered under complaint No.20070819. He received a letter annexure C-5 sent by one Mr.Anthony on behalf of O2 Helpdesk requiring him to fill the forms sent along with that letter. It was also mentioned in the letter that courier person would visit the house of the complainant and would pick up the mobile set and the forms filled in by the complainant but none came to pick up the forms and the mobile set despite the fact that the complainant made several calls to O2 Helpdesk. Ultimately complainant sent an e-mail dated 31.08.2007 to Mr.Anthony of O2 Helpdesk intimating him that the mobile set had not been picked up. Thereafter, the complainant also served a legal notice dated 12.10.2007 upon OPs but to no effect. Hence, alleging unfair trade practice and deficiency in service on the part of OPs, complainant filed complaint before the District Forum.
4. On the other hand, the case of OP Nos.1 & 3 before the District Forum was that the complaint qua them was not maintainable as the complainant was not a consumer qua them in view of section 2(d)(i) and (ii) of the Consumer Protection Act, 1986 . It was pleaded that Indiatimes Shopping is one of the ancillary sites of the trade name indiatimes.com owned and run by the Times Internet Ltd. ( for short hereinafter to be referred as TIL) a company registered under the provisions of Companies Act, 1956. The said company was engaged in various business interaila promotions/advertisings of products events, etc. and in doing so OPs No.1 & 3 acted only as an online store/show window/facilitator for various trade organizations/ manufactures, shops etc. TIL only solicited business and on behalf of such trade organization/manufacturer, shop etc. it also provided Internet related services including owning and managing sites and portals on the internet through the medium of electronic media and its networks and providing certain information to end users as well as customers. It was further pleaded that a person visiting the web site or newspaper advertisement of OPs No.1 and 3 is confronted with certain terms and conditions and only on the acceptance of those terms and conditions by the said person, he could choose to register himself with the said site or advertisement and after registration he can use the services offered by the said site or advertisement. A customer placing orders for various products displayed on the online store is only utilizing the services of TIL, which is only an invitation to offer and absolutely free of cost without hiring the same as contemplated by the Consumer Protection Act, 1986, subsequently and consequently purchasing the said product from the concerned party whose products have been put on display and not from OPs No.1 & 3. In these circumstances according to OPs No.1 and 3 they only advertised the goods provided by OP-4 and its services were hired by OP-4 for advertisement. So there was no privity of contract between the complainant and OPs No.1 and 3. It was pleaded that as soon as the complaint was received by the customer care of Indiatimes shopping, the complainant was asked to return the product for replacement and the same was sent to the vendor for replacement. It was pleaded that OPs NO.1 & 3 had only provided a platform to vendors OPs No.2 & 4 and they were liable to deliver the said product and to compensate the complainant. A prayer was made for dismissal of the complaint.
5. OPs No.2 and 4 were duly served in the District Forum but they did not appear and suffered ex parte proceedings.
6. The District Consumer Forum after going through the evidence and hearing the learned counsel for parties allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved, opposite parties No.1 & 3 have come up in this appeal.
7. We have heard learned counsel for the parties and carefully gone through the file. The main point of arguments put forth on behalf of the appellants/OPs NO.1 & 3 is that Indiatimes shopping is one of the ancillary sites of the trade name India.com owned and run by the Times Internet Ltd. (TIL)and a person visiting the website or responding to a newspaper advertisement of the appellants and placing orders for various products displayed on the online store is only utilizing the services of TIL which is only an invitation to offer and absolutely free of costs. The said products are not purchased from TIL but only through TILs shopping platform, thus, the appellants cannot be held liable for the products and goods being advertised by various manufacturers, trade organization, shop etc on its website as appellants are only the facilitators and as such are not liable for any manufacturing defects of the goods purchased by the complainant from OPs NO.2 &4. It was also contended that the appellants had an agreement with First Wholesalers OP No.4 wherein it was mutually agreed to set up an online store and that the platform for display and showcase of various products was to be provided by TIL and it was to receive orders for the products displayed but the products purchased by customers were to be dispatched and delivered by company whose product was intended to be purchased by the said customer and as such it was not liable for any manufacturing defect of the product. However, these points of arguments have been repelled by the learned counsel for complainant.
8. We have given our thoughtful consideration to the above points of arguments and find the same to be devoid of any merit, inasmuch-as it is an admitted case of appellants that Indiatimes is engaged in soliciting business of various trade organizations, manufacturers and retail shops etc and after receiving the order from the customer it is processed and the money paid towards that order for the purchased product is forwarded to the concerned manufacturer. In the instant case also, as admitted by appellants in its reply that on receiving complaint from the complainant he was asked to return the product for replacement and the same was accordingly forwarded to the vendor for replacement. Thus, appellants were actively participating in the whole transaction and acted as agents of the manufacturer, whose services were availed by complainant for purchasing the mobile set and paid the amount to them. It is not the case of appellants that they performed all activities free of cost and did not charge anything from other OPs for providing service.
Thus, being agents of OP No.4 they were also equally liable for the acts of their principal.
9. During the course of arguments, the learned counsel for appellants has also placed on file uncertified copy of the terms and conditions of Indiatimes Shopping and then submitted that in view of these conditions appellants were not liable to pay any compensation to the complainant. Firstly this document was never relied upon before the District Forum. Moreover, the same is of no help to the appellants, inasmuch-as from the material brought on record it is apparent that the appellants were not only facilitators in the transaction, rather they had been actively participating in the transaction of the sale of mobile set to the complainant from the beginning to the end. It were the appellants who had given advertisement about the product, accepted the price of mobile set from the complainant and ultimately received the defective mobile set. Thus, the District Forum had rightly held appellants liable equally with other Opposite parties in refunding the price of mobile set alongwith compensation and costs.
10. In this view of our foregoing discussion, we find no illegality in the impugned order dated 18.3.2009 and the same is affirmed. Consequently the appeal is hereby dismissed being without any merit, leaving the parties to bear their own costs.
Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.
Sd/-
Announced ( Justice Pritam Pal)(Retd.) 25th May,2010 President Sd/-
(Maj.Gen.S.P.Kapoor )(Retd.) Member Sd/-
(Mrs.Neena Sandhu) Member *Js